IURI 213

• Housekeeping Rules


  • Always attend classes
  • Prepare before attending the contact sessions
  • Familiarise yourself with module outcomes
  • Participate in the sessions
  • Use study guide as a reference when studying and preparing
• Preparation for the next Lecture

  Read Botha Statutory Interpretation Chapter 5 and consult the study unit 5 in the SG
• Module outcomes


  • Detailed knowledge and understanding of general hermeneutics and the practical importance thereof for statutory interpretation with reference to the hermeneutical circle
  • Detailed knowledge and understanding the influence of critical and sceptical theories and the relevance thereof for statutory interpretation
  • Detailed knowledge and understanding of the South African approaches to statutory interpretation and the influence of the supreme Constitution on statutory interpretation
  • Ability to analyse and evaluate the practical importance thereof for statutory interpretation with reference to the hermeneutical circle
  • Ability to provide accurate and coherent written and verbal communication on the practical importance thereof for statutory interpretation with reference to the hermeneutical circle
  • Critical understanding of the ethical implications of judicial approaches to legal interpretation
  • Ability to analyse and evaluate the ethical implications of judicial approaches to legal interpretation
  • The knowledge, understanding and respect for intellectual property conventions, copyright and rules on plagiarism
• Hermeneutics


  The science of understanding, or more specifically, the theory of the interpretation of texts
• Hermeneutics is the art of understanding: the techniques, methods or approaches used to interpret texts
• In its broader sense, hermeneutics applies to all forms of written or spoken communication
• Picasso's Guernica is an example of context and interpretation
• Critical legal scholars


  Reject the formalist position that law is rational, objective and neutral. They argue that all law is not rational: it is subjective and ideological
• Types of amending legislature

  • Postmodernism
  • Critical Legal Studies movement (CLS)
• Postmodernism


  Argues that the utopian promises of the modern world-view came to nothing. Rejects the idea that classifications and categories can be correct and final, and the notions of both objectivity and subjectivity are questioned: ultimately, everything (including knowledge) is relative, temporary and incomplete. Therefore any argument, no matter how logical it may seem, is only as good as its preconceptions and presuppositions
• Critical Legal Studies movement (CLS)

  Originated in reaction to the inability of liberalism to solve social problems such as poverty, racism, pluralism and oppression
• Deconstruction


  Should be understood as a reaction against structuralism
• Linguistic turn


  In legal interpretation, meaning is not discovered in a text, but is made in dealing with the text. Meaning is never, at any given point in time, a fixed and stable presence. The possibilities for meaning are boundless. Language is the hyper-complex, boundlessly open system that makes such a proliferation of meaning possible
• South African theories of interpretation

  • Orthodox text-based approach
  • Text-in-context approach
• Text-based approach


  If the meaning of the text is clear (the plain meaning), it should be applied, and, indeed, equated with the legislature's intention. If the plain meaning of the words is ambiguous, vague or misleading, or if a strict literal interpretation would result in absurd results, then the court may deviate from the literal meaning to avoid such an absurdity. Only when these secondary aids to interpretation prove insufficient to ascertain the intention, the courts will have recourse to the so-called tertiary aids to construction (ie the common law presumptions)
• Text-in-context approach


  The legislative function is a purposive activity. The purpose or object of the legislation (the legislative scheme) is the prevailing factor in interpretation. The context of the legislation, including social and political policy directions, is also taken into account to establish the purpose of the legislation
• Since 27 April 1994, the (largely academic) debate about a text-based approach versus a text-in-context approach to statutory interpretation has become irrelevant
• Since both the interim Constitution (s 35(3)) and the 1996 Constitution (s 39(2)) included an express and mandatory interpretation provision, statutory interpretation (like all law in South Africa) must now be conducted within the value-laden framework of the supreme Constitution which is the highest law of the land
• Provisions of the Constitution that transformed statutory interpretation

  • Section 1 (the foundational provision)
  • Section 2 (supremacy of the Constitution)
  • Section 7 (the obligation clause)
  • Section 8 (the application clause)
  • Section 36 (the limitation clause)
  • Section 39 (the interpretation clause)
• Section 1 of the Constitution

  The foundational clause that establishes human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism, supremacy of the constitution and the rule of law, and universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness
• Section 2 of the Constitution


  The constitutional supremacy clause that states this Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled
• Sunset clause


  A provision in the legislature which terminates repeal (repeals) all or portions of the law after a specific date. A sunset clause is a date-bound repeal for the future
• Section 39(2) of the Constitution (the interpretation clause)


  When any legislation is interpreted, the result must be a construction that promotes 'the spirit, purport and objects of the Bill of Rights
• The supreme Constitution, underpinned by universally accepted values and norms, is the fundamental law in the land. It is the ultimate value-laden yardstick against which nearly everything is viewed and reviewed
• Mokgoro J: 'With the entrenchment of the Bill of Fundamental Rights and Freedoms in a supreme Constitution, however, the interpretive task frequently involves making constitutional choices by balancing competing fundamental rights and freedoms. This can often only be done by reference to a system of values extraneous to the constitutional text itself, where these principles constitute the historical context in which the text was adopted and which help to explain the meaning of the text. The Constitution makes it particularly imperative for courts to develop the entrenched fundamental rights in terms of a cohesive set of values, ideal to an open and democratic society. To this end common values of human rights protection the world over and foreign precedent may be instructive'
• Constitutional state


  Underpinned by two foundations: a formal one (which includes aspects such as the separation of powers, checks and balances on the government, and the principle of legality: in other words, the institutional power map of the country); a material or substantive one (which refers to a state bound by a system of fundamental values such as justice and equality)
• Mahomed J: 'All constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people, and which discipline its government and its national institutions; the basic premises upon which judicial, legislative and executive power is to be wielded; the constitutional limits and the conditions upon which that power is to be exercised; the national ethos which defines and regulates that ethos; and the moral and ethical direction which that nation has identified for its future. In some countries, the Constitution only formalises, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and à vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution'
• Practical, inclusive method of interpretation

  • Words and phrases: the language aspect
  • Structure and context: the systematic aspect
  • Teleological interpretation: the value-based aspect
  • Historical aspect
  • Comparative aspect